Adoption of a Child and the Obligation To Pay Back Child Support

It’s not at all unusual for the non-custodial parent (NCP) of an Alabama child who has little or no relationship with the child to consent to the adoption of that child by a stepparent. Not always, but often, the adoption comes after the NCP has repeatedly failed to pay court-ordered child support, leaving an arrearage. So when the child is adopted, what becomes of the child support arrearage?

First, Alabama law provides that the adoption cuts off the former parent’s duty to pay new child support. Here’s the key language from Ala. Code § 26-10A-29(b):

(b) Upon the final decree of adoption, the natural parents of the adoptee, except for a natural parent who is the spouse of the adopting parent are relieved of all parental responsibility for the adoptee and will have no parental rights over the adoptee.

So that answers the question for the ongoing future support: it stops with the adoption. What becomes of the arrearage? It remains in effect. How could that be, when the statute says the parent is “relieved of all parental responsibility”? Understanding the answer requires wrestling with a sometimes surprising principle about child support in Alabama (and for that matter in every other state I know). Once a judge has ordered child support to be paid, each month’s payment becomes a final judgment on its due date and may be collected as any other judgment is collected. Ex parte State ex rel. Lemon, 702 So. 2d 449, 450 (Ala. 1997). And the trial court has no power to forgive a child support arrearage. Lemon, supra; Ex parte State ex rel. McDaniel, 659 So. 2d 640, 643 (Ala. 1995).

What the trial court can do, and often does do, is to award the NCP a credit for money the NCP can show that he or she has provided to or for the benefit of the child, even if those payments were not called child support. Phillipi v. State ex rel. Burke, 589 So. 2d 1303 (Ala. Civ. App. 1991).

What happens if the adoption is complete but is silent about the arrearage? Shouldn’t there be some requirement that the CP (custodial parent) reserve the arrearage? The court of civil appeals has answered this question unambiguously: no. The arrearage for back child support survives the adoption of the child by another, and there is no requirement that the arrearage be “reserved.” Corwin v. Corwin, Case No. 2070259 (Ala. Civ. App. 2008).

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